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Eiffel Tower and Indian Orthodoxy in the Shadow of the Supreme Court

ON THE NEW YEAR OF 2019, from the northern tip of Kerala to the southern end of Kerala stretching over 620 kilometres, half a million women of Kerala stood holding their hands as a human chain which was described as Mahila Mathilugal (womens wall) demanding gender equality which also wanted access to the Sabarimala temple to worship the Lord Ayyappa who is adorning the temple. It was stated that the women during their menstruation cycle are not allowed to enter Sabarimala because it is considered menstruation will pollute and disturb the celibacy of the Lord who is considered as a Brahmachari . The women were demanding implementation of the judgment of the Supreme Court delivered on September 28, 2018 which ruled that keeping the menstruating women out considering that they were impure and had the effect of polluting the place was nothing but untouchability hit by Article 17 of the Constitution. The news of the women's human chain got hardly reported in spite of the fact that it was a unique agitation involving several thousands women. The majority of the five-judge bench held: Article 17 is the constitutional promise of equality and justice to those who have remained at the lowest rung of a traditional belief system founded in graded inequality It has been placed on a constitutional pedestal of enforceable fundamental rights, beyond being only a directive principle, for two reasons. First, untouchability is violative of the basic rights of socially backward individuals and their dignity. Second, the Framers believed that the abolition of untouchability is a constitutional imperative to establish an equal social order. Its presence together and on an equal footing with other fundamental rights, was designed to give vulnerable people the power to achieve collective good. Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations of socially disempowered individuals and communities, and provides a moral framework for radical social transformation. But the demand of these women was never implemented in spite of the fact that there was a judgment in their favour and the State was supposed to implement the order under Article 144 of the Constitution. However, what prevented them was that a Review Petition was not only entertained, but also referred to a larger bench of 9 judges which took almost 8 years to hear the case for days together, whose verdict is awaited. However, what was shocking was that the bench never fixed any time limit for arguments of the counsels and they went on for more than three weeks. More shocking was that the counsels were willing to put forth arguments which were based on ancient texts and discarded over the years. Some arguments sounded similar to the ones which were advocated before the Privy Council in the beginning of the 20th century about the time tested practice and belief of the Hindu sect which should not be altered by any notions invented over the period. Little do they realise that by the 42nd amendment to the Constitution of India (1976), fundamental duties were introduced and Article 51-A makes several duties on the citizens and the sub-clause (e) specifically directs them to renounce practices derogatory to the dignity of women. While the women fight for their self-respect and dignity in the court, a group of Sanyasis belonging to the Swaminarayan sect calling themselves Bochasanwasi Akshar Purushottam Swaminarayan Sanstha (BAPS) recently went to Paris to attend the consecration of their temple in the outskirts of the city. The said group also wanted to have site-seeing in the city, one unavoidable place being the Eiffel Tower situated in the middle of the city. They intimated their tour operators that they should ensure that during their visit there should not be any interactions with the women working in the Tower. In essence, they wanted the women staff of the Eiffel Tower to be kept away from their eye contact. The management also attempted to implement the said request which led to a woman protesting against such crude discrimination and leading to the strike of the Eiffel Tower staff on September 7. In India, we may be accustomed to such blatant discrimination, but in Paris and other places it gave rise to a wide range of protest. The Mayor of Paris, Emmanuel Gregoire was quoted saying Equality between women and men will never stop at the foot of our historical monuments, nor anywhere in this country. It must be applied everywhere, for everyone. The Indian Express quoted a spokesman of the Ministry of External Affairs as saying, We are aware of the opening of a temple by the BAPS Sanstha in the Paris area. As to the particular issue pertaining to the Tower, this is a matter purely between the entities concerned. Thus the Indian Government washed off its hands instead of reacting to the conduct of the group of Sadhus who went abroad and did something contrary to the spirit of India, that too in a country where three centuries ago in a revolution overthrowing the monarchy, people raised slogans of Liberty, Equality and Fraternity which prominently finds a place in the preamble to our Constitution. To add a caveat, however, Dr. Ambedkar said that he was inspired to include these words after being inspired by the teachings of Lord Buddha who was his master. India and the Promise of Article 15 Notwithstanding the fact that the Constitution assures equality before law and Article 15 specifically prohibits any discrimination by the State on grounds of sex and other reasons set out therein. Even during the debates while framing the Constitution and when the Constituent Assembly called for responses from the general public, there were several representations received from the Hindu orthodoxy that religious rituals, such as funerals or menstrual cycles of women, rendered certain persons temporarily untouchable. To criminalise the practice of untouchability, they argued, constituted direct interference with religion.( Assembling Indias Constitution , Rohit De Ornit Shani, Penguin Random House, 2025, p. 56) The very same book which gathered this information from the archives of the Constituent Assembly also referred to several exercises made by the Hindu orthodoxy to preserve the tradition and practice of the religion. Notwithstanding these sectarian approaches, the Constituent Assembly unanimously introduced Article 14 , 15 , 16 and 17 of the Constitution and wanted to remove any kind of discrimination practiced against women. Added to this is the fundamental duty provided under Article 51-A(e). The Government of India is also party to the Convention on the Elimination of all Forms of Discrimination of Women (CEDAW) (June 25, 1993). Article 11 of CEDAW, to which India is a party, requires State parties to take all appropriate measures to eliminate discrimination against women in the field of employment. In its General Recommendation No. 19 (1992), the United Nations Committee on CEDAW further clarified that equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment at the workplace. Indias commitment to protection and promotion of womens constitutional rights as well as respect for its obligations under various international treaties is unequivocal. However, in the matter of providing equality and non-discrimination against women, however progressive the government may be, it was the judiciary which gave its peculiar interpretation, especially interpreting Article 15 of the Constitution which bans discrimination based on sex. Saurabh Kirpal, commenting on this wrote: Chief Justice M.C. Chagla [who] held that personal laws could not be challenged as violating any fundamental right guaranteed under the Constitution. This was on the basis that the definition of the term law (under Article 13 ) in the Constitution did not include personal laws in its purview. Justice P.B. Gajendragadkar, who went on to become Chief Justice of India, agreed with Chief Justice Chagla, and explained the position in starker terms. He ruled that the rules prescribed for marriages are determined by the social and economic condition of the society. In dealing with these rules, it is also necessary to remember the obvious natural differences between the sexes themselves and considerations which may legitimately arise from these differences. In his view, Article 15 of the Constitution prohibited discrimination against women if it was based on the ground of sex only. This use of the word only, as per the learned judge, implied that if there was some other ground to differentiate between men and women, other than sex alone, the legislation would be upheld. ( Who is Equal? , Saurabh Kirpal, Penguin Random House India, p.187-88) That the Indian judiciary is still in the learning process was recorded in the case of Gwalior Judge in which Indira Jaisings intervention was described by a lawyer with a phrase which was completely misogynist. Justice J.S. Khehar observed: Every day is a matter of learning there is a lot to be learnt, from what she innocuously conveyed. Her sensitivity to the issue, one may confess, brought out to us, a wholly different understanding on the subject. It is therefore, that we have remarked above, that the evaluation of a charge of sexual harassment, would depend on the manner in which it is perceived. It took 8 years for the Supreme Court to issue a Hand Book on Combating Gender Stereotypes (2023). Writing the preface for the book, Chief Justice Dhananjay Chandrachud wrote: Our oath as judges mandates that we perform the duties of our office without fear or favour, affection or ill-will. The oath demands that we discharge our functions with impartiality and objectivity, applying the law to every case before us. A judges oath demands rejecting improper attempts to influence their decision-making. The oath also requires a judge to put aside any preconceived notions about the parties before the court. Relying on predetermined stereotypes in judicial decision-making contravenes the duty of judges to decide each case on its merits, independently and impartially. In particular, reliance on stereotypes about women is liable to distort the laws application to women in harmful ways. (Handbook on Combating Gender Stereotypes, Supreme Court of India, 2023) No sooner Chief Justice Surya Kant took over, he dismissed the book as too Harvard-oriented and said that it may not be understood by the rape survivor, her relatives or commoners. He said that judges should receive practical training on the issue, directing the National Judicial Academy, Bhopal to frame fresh guidelines , rather than sermonise High Court judges from the Supreme Court. But what is happening in the country is quite different. There was a Hindu Swamiji from South who told the women to stay at home and take care of the children and if they want to earn some amount, they can prepare kumkum or pappad at home. This trait is not confined only to Hindu swamijis . An Islamic scholar from Kanthapuram in Keralam, A.P. Aboobacker Musliar apparently advised women to remain confined to their homes because their public appearances led to great destruction. When a journalist Aparna Kurup questioned and criticized the view, she got death threats. When she approached the police for her protection, a case was booked against her which is still going on. Four women judicial officers were terminated by the Madhya Pradesh High Court; they approached the Supreme Court. When the matter came up before Justice Nagarathna she got furious and even at the admission stage remarked: I wish men had menstruation, then only they would understand. Finally allowing all the four applications and setting aside those termination orders, she emphasized that the only way such discriminations will disappear is that women should enter the field in large numbers and ultimately have positions where the decision-making will be in their hands. She said : To holistically understand womens effective participation in the Judiciary, it is important to look at three main phenomena: (I) the entry of women into the legal profession; (II) the retention of women and growth of their numbers in the profession; and (III) the advancement of women, in numbers, to senior echelons of the profession. Many have stressed that increased diversity within a judiciary, and ensuring judges are representative of society, enables the judiciary as a whole to better respond to diverse social and individual contexts and experiences. It is a recognition of this fact that a greater representation of women in the judiciary, would greatly improve the overall quality of judicial decision making and this impacts generally and also specifically in cases affecting women. Ultimately, whether any case will be filed against those BAPS sadhus is not known. Since their newly consecrated temple may attract many devotees and tourists from Europe, the French govt. may not attempt any such exercise. But theoretically if any case is instituted in India, what will be the outcome, is anybodys guess? Since Article 15 (2) is qualified by the word only and in the absence or conditions of sex plus theory is applied in all probabilities the Sadhus may escape by saying that the religious right will exclude an application of discrimination theories. Ultimately, the nine-judge bench will decide, of which Justice B.V. Nagarathna is also a part of the key answer. If they decide that the Hindu Sadhus cannot dictate as to who should be the Eiffel Tower staff and what should be their sex identity, it will be well and could and on par with the civilized world. If they decide otherwise, then the Prime Minister shouting on all platforms about Nari Shakthi will only become a mirage.

14 Sep 2026 9:21 am